Politics swings for the crime: how states came to the end of the rope

When Australian states hanged people, the people were the executioners. A century of statistics shows capital punishment has never been a deterrent to murder.

As the death penalty was abandoned across the Australian states, this non-deterrence was confirmed by falling not rising murder rates.

When Australian states hanged people – the last of them, Victoria, in 1967 – the people were the executioners. And when the people turned against what they came to see as state-arranged premeditated murder, the punishment was scrapped.

That’s the simple way of looking at how our states, one by one, but over many decades, overturned the laws allowing capital punishment.

But it was never that uncomplicated. Indeed, Western Australia, NSW, Victoria and Tasmania all abolished capital punishment after controversial cases in which men were put to death who might have been innocent or mentally incapable of forming the intent for their crimes. And in the case of Tasmania and Victoria there were shameful political dimensions to each state’s final hangings.

When Frederick Henry Thompson was executed in Hobart in 1946, he was the first to have a warrant for his death approved in that state for 24 years. It had long been moving away from capital punishment, but there was outrage when he killed Evelyn Maughan, 7, as she walked to a Sunday church service.

Nonetheless, even church leaders pleaded for mercy from Labor premier Robert Cosgrove, asserting that Thompson was obviously insane. But there was an election in the air. Cosgrove’s government went with the mob. And hung on.

Similarly, Victorian premier Henry Bolte insisted Ronald Ryan be hanged after being convicted of shooting dead a warden during a 1966 jail break. Ryan’s lawyer, Philip Opas QC, sometimes invited me to his office to go over the evidence that today would convict no one of murder.

Decades later it was revealed three of the jurors had second thoughts and wrote to Victoria’s governor pleading for mercy for Ryan. The governor controversially, some would say shamefully, concealed the correspondence and when cabinet came to vote on Ryan’s fate its members were unaware of those letters.

But one state, Queensland, led the way on abolishing state-sanctioned killing. Not just in Australia but across the British Empire. It is a century since Queensland ended capital punishment.

Some 5000 anti-capital punishment protest marchers outside Melbourne’s Pentridge Prison, protesting the hanging of Ronald Ryan.

Prominent Queensland KC Peter Roney and Kay Saunders, an eminent historian and emeritus professor at the University of Queensland, delivered an address at the Queensland parliament last month to commemorate the abolition of the death penalty in Queensland, and its unique place as the first to do so.

Typically, it did so after the state’s citizens thought a man who hanged had been tried unfairly. Patrick Kenniff was a handsome, beguiling thief and, by the time he and his brother James were facing murder charges, had attracted a Ned Kelly-like fascination. No one in Queensland thought the Kenniffs were other than crooks and bushrangers who mostly stole cattle for a living. They had a long history of crime.

But their last crimes would turn into a judicial and political milestone.

Early in March 1902 a warrant was issued for the arrest of the brothers on a charge of stealing a pony. Three men set out to detain them: Constable George Doyle, assisted by Aboriginal tracker Sam Johnson, and a local station manager, Albert Dahlke. On Easter Sunday, March 30, the pair were found at Lethbridge’s Pocket, about midway between Longreach and Rockhampton. Patrick escaped, but James was detained. Johnson returned for police pack horses to help in the pursuit of Patrick, but when he returned to the site Doyle, Dahlke and their prisoner, James Kenniff, were missing. It is assumed Patrick returned for his brother and in a subsequent shootout Doyle and Dahlke were murdered. More than 90kg of burnt human remains were found in Doyle’s police horse saddlebags.

Johnson fled and raised the alarm, and Queensland’s biggest manhunt was soon under way – there was £1000 on offer for information leading to their capture, a huge sum then. The fugitives were located and arrested at a bush camp on June 2 that year.

At the time, a former newspaper editor turned Queensland Labor member of parliament, the mercurial Joe Lesina, was an almost lone voice against capital punishment. His party did not agree with him; neither did the union movement. And Queenslanders rightly assumed the Kenniffs guilty of wilful murder, one of the crimes for which capital punishment was still mandatory.

Bushranger Patrick Kenniff was executed on January 13, 1903.

James Kenniff, whose death sentenced was commuted to life in prison.

The 19th century in Australia was the era of executions. More people were executed in NSW in 1830 than in the whole of England and Wales, not least of which because many British criminals who ordinarily might have been executed were instead transported. Not that the British crime rate eased at all, a correlation that did not go unnoticed. So there began a push to limit capital punishment in England. Even in Australia the rate of judicial killings subsided as the century progressed and, specifically, public executions had been banned.

Nonetheless, a dozen criminals were executed in Queensland in the decade from 1890. Nineteen – including Patrick Kenniff on January 13, 1903 – would be executed in the following decade, two on the same day. But that tide was about to turn. Events during the trial – which led to murder convictions for the Kenniffs and death sentences (James’s was commuted to life in prison) – unnerved Queenslanders.

At a pre-trial hearing, the brothers were represented by a young lawyer, Thomas Joseph Ryan, who had been admitted to the bar just the year before. (Ryan went on to a prominent career as a state MP, reforming premier and eventually served in Canberra, and many believe would have been prime minister had he not died in 1921, never having fully recovered from contracting the Spanish flu in London during the 1918 pandemic).

A so-called special jury was empanelled for the Kenniffs’ trial and presided over by Welsh-born Sir Samuel Griffith, a former Queensland premier who played a role in drafting the Australian Constitution and was considered liberal on many issues, but also described as being “ideologically fluid”.

Ronald Ryan, centre, is escorted to the CIB by Sydney detectives, Det-Sgt F Charlton (left) and Det-Sgt RR Morrison.

Ryan tried, but failed, to challenge the special jury – comprising professional and business people – which he knew to be a guard against a sympathetic local jury, possibly made up of some of the Irish working-class families who would have identified with the wayward brothers. With the Kenniffs’ lives on the line, two solicitors, Edward Lilley and Lionel Lukin, today described as “out of their depth” by Roney, were assigned the defence case.

As Roney and Saunders pointed out, there were no witnesses to the murders. The evidence was entirely circumstantial, including possession of incinerated human remains, although those needed some explanation. The murder charge related only to the police constable.

“They called them the last of the bushrangers,” Roney said this week. “They had this folklorish element to them. Creating a ‘special jury’ had implications of political interference. There was some special accommodation being made to get these guys,” Roney added, believing the premier of the day, Scots-born Robert Philp, probably did not want the pair convicted, and certainly not hanged. As the trial drew to a close, Philp, his minister for mines, William Browne, and leading businessmen attended the court for Griffith’s address to the jury, doing so, one assumes, to help sway Griffith, but he was beyond such pressure. Even his biography written at namesake Griffith University states “many of Sir Samuel’s decisions do not stand up to modern scrutiny”. But his integrity is unquestioned.

The Kenniff brothers were found guilty and sentenced to hang. At that time there was no Court of Appeal, but one could apply to the Full Court. Griffith sat on this too. One member had doubts about James’s sentence; the Philp government confirmed Patrick’s death sentence and sent James to life for jail. In the event he served just 12 years.

The British experience had demonstrated that the death penalty was not a deterrent to murder.

Not unlike Barry Jones, who in 1967 was an aspiring state Labor MP in Victoria and would become a federal minister for science in the Hawke Labor governments of the 1980s, and who was with 3000 protesters outside Melbourne’s Pentridge Prison the morning Ryan was hanged, Lesina led the campaign to prevent Patrick’s execution. He managed to assemble 4000 protesters to a vigil before the hanging.

Both men sparked the campaigns and garnered community support to rid their states of judicial killings. Lesina secured Labor endorsement for the idea four years later, his push was assisted by the controversial hanging of Arthur Ross, who had murdered a bank employee during a botched robbery. Ross always admitted and regretted the crime and on the gallows stated: “I wish to thank the people of Queensland for the kind interest they have taken in me and my life. I am sorry for the deed that I committed, and I hope to gain forgiveness for my sin.”

There was a heavyweight campaign to save Ross but even though it failed, the dial was moved and a ban on capital punishment found its way on to the Labor state conference agenda, where it passed without debate. It was then put as an act for a bill to the Queensland Legislative Assembly in 1916 and passed on September 15 that year. It failed in the then difficult-to-manage and obstructionist but soon-to-be-abolished Legislative Council. A stacked council – with enough Labor-appointed members – voted for its own abolition in 1921 and in July the following year a bill was passed in the remaining house ending capital punishment.

Ronald Ryan, the last man hanged in Australia, when he was a schoolboy.

As Roney and Saunders pointed out, there was very little public comment about the change; it is suggested the terrible Australian losses in France during the Great War had wearied a public tired of unnecessary deaths and that Australians had moved beyond the notion of an eye for an eye. In any case, the British experience had demonstrated that the death penalty was not a deterrent to murder.

As the death penalty was abandoned across the Australian states, this non-deterrence was confirmed by falling not rising murder rates. Of course, once a criminal is hanged they can no longer commission other offences, including killings but, even taking this into account, a century of statistics shows capital punishment has never been a deterrent to murder. In any case, the rate of reoffending for murders is lowest of all.

Roney and Saunders argue that the modern system concentrates on the possibilities of rehabilitation, obviously denied to those who have been hanged: “Criminologists now know that even the worst violent criminals, persons who apparently have nothing to commend them to the community, are capable of rehabilitation and can make useful contributions to society and be deserving of dignity.”

This report was based on a presentation by Peter Roney KC and emeritus professor Kay Saunders to the recent Commemoration of the Abolition of the Death Penalty in Queensland 1922 - 2022 conference held at the Queensland parliament.